THE LAW OF TREATIES

Public International Law (LW814)Week 4 (19 October 2020)

Kent Law School

THE LAW OF TREATIES

Part 1: The ABC of Treaty Law.

Lecture Readings:

1. Klabbers, ‘The Law of Treaties’.

Reading Questions:

1. What kind of “source” are treaties?2. What is the importance of treaties and treaty law in contemporary PIL?3. What is the relation between treaty and customary law?4. What are the rules on the interpretation of treaties and where do we find

them?5. What are the differences between treaty law and the large and increasing body

of soft (international) law?

THE LAW OF TREATIES

Part 2: The Politics of Treaty Law

Seminar Readings:

1. Matthew Craven, ‘What Happened to Unequal Treaties? The Continuities of Informal Empire’ (2005) 74 Nordic Journal of International Law 335.

Reading Questions:

1. How do questions of global power express themselves through treaty law, and in particular the history of unequal treaties?

2. What doors do treaties open, and what doors do they close, in the practice of international law?

Let’s start talking about Treaty Law …

Art. 38(1)ICJ (1945)

States

Other oddities (Klabbers) …

• Not exhaustive• Old• Static• Confusing

Art. 38(1)ICJ

Treaties

Custom

General Principles

Judicial decisions

Doctrine

1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

2. International custom, as evidence of a general practice accepted as law;

3. The general principles of law recognized by civilized nations;

4. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Soft Law

• Produce by “the others” of PIL

• Legal Effect• Presumption of

binding force

Art. 38(1)ICJ

Treaties

Custom

General Principles

Judicial decisions

Doctrine

1st

2nd

3rd

Consent

Broad Custom

Complementary

What is agreed in the treaty?

Treaties

“Meetings of the minds” “Disagreement reduced to writing” (Allott)

Set of binding obligations

How treaties should be interpreted?

When are the obligations suspended?

Pacta sunt servanda

Law of Treaties

Customary international law of the law of treaties

Vienna Convention of the Law of Treaties (VCLT) (1969, into force 1980)

VCLT with or between International Organizations (1986, into force ?)

By the middle of the twentieth century the customary international law of treaties had grown to a fairly comprehensive body of rules. In view of that, the International Law Commission placed it at its first session, in 1949, among the topics suitable for codification …

Karl Zemanel, Emeritus Professor, University of Vienna Vice-Chairman of the Austrian Delegation to the United Nations Conference on the Law of Treaties.

UN Audiovisual Libraryhttp://legal.un.org/avl/ha/vclt/vclt.html

Second session of the Conference on the Law of Treaties, Hofburg Palace, Vienna, Austria (9 April 1969)

What about treaties that resemble more legislation (e.g. in the area of human rights)?

Law of Treaties

Customary international law of the law of treaties

Vienna Convention of the Law of Treaties (VCLT) (1969, into force 1980)

Rules more geared towards a view of treaties as “contracts” (as instruments, and little about them as expressions of public law)

Not much about bridges (displacing these discussions towards the Law of State Responsibility)

It is a residual law…

VCLT with or between International Organizations (1986, into force ?)

They should be expression of free consent.

Law of Treaties

Agreements in written form, concluded by states and

“governed by international law.”

Pacta sunt servanda

Once consent is expressed, the treaty should be kept by the parties in good faith (even when it is against domestic law (art. 27 VCLT)… unless domestic law declares itself superior to Int. Law)

Please note… there are legal relations (between states) that are not treaties (e.g. contracts)

And… there are also norms and standards that exercise “normative guidance” but are not treaties – soft law?

Conclusion

Law of Treaties

Head of State, Foreign Ministers, Ambassadors, Reps. to Conferences and Organizations… & not need of full powers.Signature vs Ratification (note: Ambiatelos ICJ (1952): if a treaty remains silent, mere signature probably suffices, unless ratification is ‘of vital importance’.Backtracking should be assess in context.

ReservationsICJ: Permissible as long as they are consistent with the objective of the Treat. (Adv. Op. Res. Genocide)

VCLT, art. 20: (i) States accept; (ii) keeps silent, (iii) object but continue; (iv) or fully not accept.

VCLT … bias towards reserving states – but plenty of attempt to change this.

InterpretationTextual Approach

Historical Method

Teleological Method

VCLT, art. 31

Application

TimeSpacePersons

Subject matter

Revision

Law of Treaties

Amendment (VCLT. art. 39-41): “As long as it does not deprive others of rights under the … treaty… and as long as it is compatible with the treaty’s object and purpose.”

What happens to parties left out or not amending?

Validity or Invalidity

Problems with substance (jus cogens. Art 53)

Things that “may render invalid”: e.g. errors or manifest violation (arts. 46-50).

Things that “render invalid”: e.g. coercion or in violation of a peremptory norm (arts. 51-53). BUT what about controversial… peace agreements or Security Council resolutions?

Termination

Termination by the parties

Terminate by the operation of the lawOr…. Suspension

What happens when circumstances or institutions change?

Unilateral terminationForce majeure

Rebus sic stantibus: no more convenient to the parties.

Treaties should be better understood as “disagreement reduced to writing” (Allott)

But this, again, should be put into context …

Part 2

What does the history of unequal treaties tell us about this “disagreement reduced to writing”?

China – the cake of Kings and Emperors, "Le Petit Journal", 16th January 1898

Open Door Policy - attempting to end unequal treaties with China.

“School Begins,” Puck, January 25, 1899.http://www.americanyawp.com/text/19-american-empire/

“Every treaty, in some respects, is a manifestation of inequality – whether understood in terms of a substantive lack of equilibrium in the respective burdens and benefits, or in terms of the unequal bargaining power of the contracting parties” (Craven)

“[A] presumption of equality might be thought actually beneficial. It serves to ‘flatten’ power relations within the framework of the agreement, confining their operation to the moment of negotiations, excluding their salience thereafter.” (Craven)

However, “the latent conditions for the persistence of unequal treaties remain intact, [which demonstrates] the extent to which one might be able to identify, within the context of current treaty relations, the continuance of colonial models of power and authority.” (Craven)